Appeal No. 98-0064
Application No. 29/043,747
The sole claim on appeal, directed to the ornamental design
for a spoiler with legs, stands rejected under 35 U.S.C. ' 103 as
unpatentable over Whitney. The examiner contends that the
instant claimed invention is not patentably distinct over the
curved wing spoiler of Whitney.
Reference is made to the brief and answer for the respective
positions of appellants and the examiner.
OPINION
We reverse.
At the outset, we note that a rejection of a design claim
under 35 U.S.C. ' 103 requires that there must be a reference, a
something in existence, the design characteristics of which are
basically the same as the claimed design in order to support a
holding of obviousness. In other words, the basic reference
design must look like the claimed design. See In re Harvey,
12 F.3d 1061, 1063; 29 USPQ2d 1206, 1208 (Fed. Cir. 1993) and In
re Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982).
Notwithstanding the examiner’s contention to the contrary,
there is simply no evidence of record that Whitney constitutes a
Rosen-type reference. The only differences recognized by the
examiner [bottom of page 3 to the top of page 4 of the answer]
are in the slight upward curving of the top of the spoiler in
instant Figure 7 and a suggestion of a curve on the bottom, but
the examiner considers these differences “so minor that the final
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